Appendices — Virginia v. Maryland

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APPENDIX A

J. Joseph Curran, Jr. Carmen M. Shepard

Attorney General Donna Hill Staton

Deputy Attorneys General

STATE OF MARYLAND

OFFICE OF THE ATTORNEY GENERAL

Telecopier No. Writer's Direct Dial No.

(410) 576-6955 (410) 576-6318

March 23, 2000

Christopher D. Man, Esq.

Arnold & Porter

555 Twelfth Street, N.W.

Washington, D.C. 20004-1206

Re. Virginia v. Maryland, No. 129 Original (S.Ct)

Dear Mr. Man:

The State of Maryland consents to the submission of an

amicus curiae brief to be filed in this case on behalf of the

Audubon Naturalist Society.

Thank you for your consideration.

Sincerely,

/s/ Andrew H. Baida

ANDREW H. BaIDA

Assistant Attorney General

200 Saint Paul Place ¢ Baltimore, Maryland 21202-2021

Telephone Numbers: (410) 576-6300 * D.C. Metro 470-7534

Telephone for Deaf: (410) 576-6372

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APPENDIX B

Commonwealth of Virginia

Office of the Attorney General

Richmond 23219

Mark L. Early 900 East Main Street

Attorney General Richmond, Virginia 23219

804 — 786 — 2071

March 28, 2000

Christopher D. Man, Esq.

Arnold & Porter

555 Twelfth Street, N.W.

Washington, D.C. 20004-1206

Re: 129 Original —- Commonwealth of Virginia v. State of

Maryland

Dear Mr. Man:

The Commonwealth of Virginia does not consent to the sub-

mission of an amicus curiae brief on behalf of the Audubon

Naturalist Society in opposition to the Commonwealth's motion

for leave to file a bill of complaint.

The Commonwealth believes the Audubon Naturalist Society

has no legitimate interest in this dispute between two sover-

eigns, or in denying Virginia the forum provided by the United

States Constitution. To the extent the Audubon Naturlaist Soci-

ety may have an interest in the underlying issues, that interest

can be adequately represented by the State of Maryland.

With kindest regards, I remain

Sincerely yours,

/s/ Frederick S. Fisher

Frederick S. Fisher

Assistant Attorney General

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Cc: The Honorable J. Joseph Curran, Jr.

Attorney General of Maryland

The Honorable Parris N. Glendening

Governor of Maryland

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APPENDIX C

IN THE

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,

Plaintiff,

Vv.

STATE OF MARYLAND,

Defendant.

No. 129, Original

AFFIDAVIT OF JOHN M. DE NOYER, PH.D.

JOHN M. DE NOYER, PH.D., being duly sworn, deposes

and says:

1. lam a member of the Audubon Naturalist Society and live

in Herndon, Virginia, where | am a customer of the Fairfax

County Water Authority.

2. Ihave close to 50 years of experience in earth studies. I

obtained both my masters (1953) and Ph.D. (1958) in geophys-

ics from the University of California at Berkley and taught geol-

ogy at the University of Michigan. From 1969-72, I was the Di-

rector of Earth Observation Systems for NASA and, from 1972-

79, | was the Director of Earth Resources Observation Systems

Program for the U.S. Geological Survey. | continued working

for the U.S. Geological Survey as a research geophysicist from

1979 until 1991, when I retired from the agency, and I now pri-

vately contract my services as an earth sciences consultant.

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3. [have considerable expertise in addressing environmental

issues in Northern Virginia. From 1989-96, I was a member of

the Fairfax County Environmental Quality Advisory Council

and served as its Chairman from 1991-94. I also am a member

of the Herndon, Virginia Town Council, where I have served

since I was first elected in 1988.

4. lam strongly opposed to the construction of the mid-river

intake structure that has been proposed by the Fairfax County

Water Authority and | oppose the Commonwealth of Virginia's

attempt to represent my interests before the Supreme Court. The

problems that the Authority now faces from sedimentation are

caused by the Commonwealth's failure to implement a non-

point source control program in Northern Virginia. Rapid devel-

opment is taking place in Northern Virginia without adequate

land use planning or other appropriate environmental controls.

Consequently, there is considerable urban runoff into Sugarland

and Broad Runs and that runoff later empties into the Potomac

River upstream from the Authority’s present shoreline intake.

The preferable solution to this problem would be to implement a

non-point source program to control the cause of the sedimenta-

tion, rather than to address what is merely one of the impacts

from the sedimentation.

5. Controlling the source of the sedimentation through non-

point source controls would serve recreational and environ-

mental interests, as well as the Authority's interest in reducing

solids handling and disposal costs. The area where the proposed

intake structure would be built lies on a portion of the river that

is widely used for boating and other forms of recreation. The

sedimentation in the river makes water-related activities more

dangerous (particularly if the Commonwealth's assumption that

Cryptosporidium parvum is present is correct) and adversely

impacts the ecology. Controlling the sedimentation at its source

advances everyone's interest, without requiring the Authority to

spend millions of dollars on the proposed construction project.

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By contrast, blasting a mammoth trench through the bed of the

Potomac River would be extremely detrimental for recreational

activities, especially activities that take place on the water. Per-

haps more importantly, the blasting and related construction

would generate additional sediment that could have serious

long-term effects on the environment. Given the considerable

risks that the proposed intake would cause and the availability

of less invasive and more beneficial alternatives through non-

point source controls, there is no adequate justification for con-

structing the proposed intake structure.

/s/ John M. DeNoyer, Ph.D.

JOUN M. DeNoyer, Pu.D.

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APPENDIX D

IN THE

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,

Plaintiff,

Vv.

STATE OF MARYLAND,

Defendant.

No. 129, Original

AFFIDAVIT OF MARIE W. RIDDER

MARIE W. RIDDER, being duly sworn, deposes and says: ~

1. 1am a member of the Audubon Naturalist Society and a

riparian land owner along the Virginia side of the Potomac

River down-stream from the point at which the Fairfax County

Water Authority has proposed constructing a mid-river intake.

My water is supplied from the Potomac River.

2. I have served as a board member on numerous environ-

mental organizations, including the Virginia Parks Foundation,

Environmental Policy Institute, Friends of the Earth, Chesa-

peake Bay Foundation and Piedmont Environmental Council. |

also have held numerous environmentally-oriented governmen-

tal positions on behalf of the Commonwealth of Virginia. For

example, | was appointed Chairman of the Virginia Council on

the Environment by Governor Baliles, and later by Governor

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Wilder, and Governor Dalton appointed me to serve on the Vir-

ginia Outdoors Federation.

3. I strongly oppose the Commonwealth and the Authority's

efforts to construct a mid-river intake up-stream from my prop-

erty. I do not want the Commonwealth to speak for me in this

lawsuit. There are serious environmental implications associated

with the heavy blasting of the river bed that this project would

require. Certainly, it would disturb the beauty and tranquility of

this area, which is widely used for recreation by myself, the

Audubon Naturalist Society and its members, and countless oth-

ers. Activities that take place on the river would be restricted, if

not prohibited, during the construction. Depending upon how

the intake is designed and operated, the project also may impact

upon the aesthetic beauty of the river and threaten wildlife

through the entrainment and entrapment of aquatic life. As a

down-stream riparian land owner, I am concerned that these en-

vironmental impacts may adversely affect both the river and my

property.

4. In my view, the proposed intake addresses only a symp-

tom of the problem that is created by the Commonwealth’ s fail-

ure to control non-point discharges of sediment into Broad Run

and Sugarland Run. Even if the proposed intake were effective

in resolving the Authority’s concerns, the impacts from the

sedimentation on the ecology of the river and for other users of

the Potomac River would remain the same. Indeed, the heavy

blasting associated with the construction of the intake may add

to the sedimentation problems for the ecology and for other us-

ers of the river. For these reasons, the preferable solution to the

sedimentation problem should focus on the source of the prob-

lem and not on one of its discreet effects.

/s/ Marie W. Ridder

MARIE W. RIDDER

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APPENDIX E

Draft

Response to U. S. Army Corps of Engineers

Regarding U. S. Fish and Wildlife Service Comments

on Joint Application for Permit for Potomac Mid-River Intake

Prepared for

Fairfax County Water Authority

by

HARZA

Engineering Company

December, 1996

I. Introductian

This document provides the responses of the Fairfax County

Water Authority (“Authority”) to the comments of the U.S. Fish

and Wildlife Service (“FWS”) on the Authority’s Joint Permit

Application for Activities in Waters and Wetlands of the Com-

monwealth of Virginia for the proposed Potomac Mid-River In-

take. The comments were transmitted to the Authority in a letter

dated June 10, 1996 (Exhibit 1) from the U.S. Army Corps of

Engineers, Northern Virginia Regulatory Section (“USACE”).

The document includes five sections as follows:

e A short discussion of the purpose of the proposed Potomac

Mid-River Intake;

e Response to the FWS comment on entrainment and im-

pingement of fish eggs and larvae;

¢ Response to the FWS comment on best management prac-

tices;

¢ Response to the FWS comment on “done in the dry” con-

struction; and

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e Response to the FWS comment on conditioning of the per-

mit.

Il. Purpose of the proposed Potomac Mid-River Intake

The purposes of the proposed Potomac Mid-River Intake are

to reduce the anticipated costs of handling solids generated in

the Corbalis treatment plant, to reduce operation and mainte-

nance requirements compared to the existing intake, and to im-

prove the quality of raw water withdrawn for water supply pur-

poses.

Construction of the proposed intake will not increase the Au-

thority’s ability to withdraw flow from the Potomac River. This

capacity is limited by regulations and by several physical pa-

rameters including the dimensions of the pipelines between the

existing intake and the raw water pumping station, the raw water

pump characteristics and the physical dimensions of the raw wa-

ter pumping station. The maximum amount that the Authority

can withdraw from the Potomac River is regulated by the Inter-

state Commission on the Potomac River Basin during restricted

times. Additionally the Authority must obtain permission from

the State of Maryland Water Resources Administration to ap-

propriate any water. Currently, the Authority is permitted to

withdraw a yearly average of 100 million gallons daily (MGD)

and a maximum daily flow of 200 MGD. The physical parame-

ters limit the maximum flow rate that can be withdrawn from

the Potomac River at normal water level to approximately 400

MGD whether the mid-river intake is constructed or not. The

proposed mid-river intake is intended to supplement the existing

intake and to operate alone or in tandem. Its design capacity ts

300 MGD operating alone.

ll.A Solids Handling Costs

Raw water withdrawn from the Potomac River contains sus-

pended solids and sediments which are removed in the Corbalis

Treatment Plant settling basin, dewatered in the plate presses,

stockpiled on site and intermittently hauled off-site for disposal.

Approximately 30,000 tons of solids are estimated to be re-

moved from the plant in an average year. Authority expenditures

related to handling these solids are the costs of coagulants and

flocculants in the settling basin, operational costs for the plate

presses and disposal costs. It is estimated' that the annual costs

of these items at the current rate of water consumption (ap-

proximately 60 MGD) are approximately $ 1.5 million, roughly

equally divided between the costs of chemicals and the costs of

disposal. The population of the service area, water consumption

and annual solids disposal requirement are expected to increase

over the next 40 years. The estimated average rate of water con-

sumption in 2040 is 200 MGD and the annual solids disposal

requirements are estimated to increase proportionately to ap-

proximately 80,000 tons. The present value of the disposal and

related costs over this period will be approximately $26 million.

The Authority has observed that a large portion of the raw

water sediment load is delivered to the treatment plant immedi-

ately following locally heavy storms. These storms cause ero-

sion of soil and runoff into the Potomac River and its tributaries.

The effect is pronounced in the two tributaries, Sugarland and

Broad Runs, which enter the Potomac River on the Virginia side

approximately | mile and 4 miles upstream, respectively, of the

existing intake (located on the Virginia bank). The watersheds

of these streams are undergoing development as the Washington

metropolitan area expands. During storms, sediment plumes

from these streams are noticeable and extend downstream of the

intake to the submerged Seneca Dam. On many occasions, the

water in the middle of the Potomac River is relatively clear

compared to that along the banks. Aerial photographs and water

quality sampling confirm the large difference in sediment and

solids concentrations between the Virginia shore and mid-river

' Harza Engineering C ompany, 1994, Investigation of lmprovemenis, Po-

tomac River Raw Water Supply Intake, for the Fairfax County Water Author-

ity. ‘

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during local storms. The yearly average sediment concentration

along the shore is estimated to be approximately 60 milligrams

_ per liter (mg/l) compared to 30 mg/l in the middle of the river.’

It is estimated that the amount of solids delivered to the treat-

ment plant can be reduced by approximately 40 percent with a

new intake located off-shore. The recommended location is 725

ft off-shore of the existing intake.

The savings in costs of handling solids resulting from the new

intake would have a present value of approximately $7.2 mil-

lion. The estimated reduction in the weight of disposed solids

would be approximately 800,000 tons over 40 years.

The estimated cost of the mid-river intake facilities proposed

in the permit application is $5.3 million. Thus, the Authority

would realize a net benefit of $1.9 million, and this is the eco-

nomic justification for the proposed intake.

* Harza Engineering Company, 1996, Preliminary Design Report, Poto-

mac Mid-River Intake, for the Fairfax County Water Authority.

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APPENDIX F

January 28, 1998

Northern Virginia Regulatory Section

96-0017-40 (Potomac River)

Mr. Martin B. Sultan

Fairfax County Water Authority

8560 Arlington Boulevard

P.O. Box 1500

Merrifield, Virginia 22116-0185

Dear Mr. Sultan:

This is in reference to your Department of the Army authori-

zation to construct a raw intake structure located in the river ex-

tending channel ward about 725 feet from the Virginia shore-

line, a 10-foot diameter concrete pipe extending from the new

intake to the existing intake, a connection to the existing intake,

a Clean-out shaft, and approximately 3200 feet of 9-foot diame-

ter pipeline extending from the existing intake to the existing

raw water pumping station. The project is located on the Poto-

mac River, north of Lowes Island and approximately 2000 feet

upstream of the Seneca Dam, in Loudoun County, Virginia and

Montgomery County, Maryland.

On December 10, 1997, we received a letter from the Mary-

land Department of the Environment, stating that they had de-

nied their authorization of the project. Based on this new infor-

mation, I have no recourse other than to suspend your Depart-

ment of the Army permit in accordance with Corps regulations

outlined in 33 CFR 325.7(c). By regulation, you may request a

meeting with me, within 10 days of the receipt of this letter, to

present all pertinent information on this matter. Following this

suspension, a decision will be made to either reinstate, modify,

or revoke the subject permit.

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If you have any questions about this suspension notification,

please Contact Mr. Ron Stouffer at (703) 221-6967.

Sincerely,

/s/ Robert H. Reardon, Jr.

ROBERT H. REARDON, JR.

Colonel, Corps of Engineers

District Engineer

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APPENDIX G

LAW OFFICE

FRANCES A. DUBROWSKI

11 DUPONT CIRCLE, N.W.

SUITE 800

WASHINGTON, D. C. 20036

TELEPHONE (202) 588-7618

FACSIMILE (202) 588-5185

December 22, 1997

Dr. John H. Zirschky, Assistant Secretary for Civil Works

. U.S. Department of the Army

108 Army Pentagon, Room 2E570, MC OASA(CW)

Washington, D.C. 20310-0108

Re: Potomac River's proposed new water supply intake

Dear Dr. Zirschky:

On behalf of the Audubon Naturalist Society (ANS), I am

writing to notify you of ANS’ objections to Army Corps of En-

gineers permit #960017, which purportedly authorizes Fairfax

County Water Authority (“Authority”) to construct a new water

supply intake and related structures' approximately 725 feet

from the shoreline in the middle of the Potomac River, upstream

of the Seneca Dam in Montgomery County, Maryland. We urge

the Corps to reconsider and revoke this wholly illegal permit.

This letter sets forth:

' The related structures in Maryland waters include a 10-foot diameter

concrete pipe connecting the new to the existing intake and a tee structure in

the conduit approximately 75 feet from the new intake to facilitate future

addition of a third intake. The Corps also authorized the Authority to con-

struct a 9-foot by 3200-foot pipeline from the existing intake to the raw water

pumping station along the Virginia shore in Loudoun County.

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e why construction is barred or inadvisable due to lack of

support from other federal and state agencies,

e why ANS believes this Corps permit is not authorized by

statute, contrary to regulation, unsupported by the evi-

dence, arbitrary and capricious, and unduly vague, vio-

lates ANS right to due process; and violates the Presi-

dent's Executive Order on Environmental Justice, and

e why ANS recommends the Corps reconsider this permit.

1. Lack of support among other federal and state agencies.

Construction of the proposed intake cannot proceed because

the Maryland Department of the Environment (MDE) refused to

grant the Authority’s request for a nontidal wetlands and water-

way construction permit. MDE determined that the Authority

failed:

e to provide acceptable Tesponses to technical design and

construction issues (including the effects of blasting and

construction-generated sediment, the size of the intake

pipe, and its impact on aquatic life, public safety, aesthet-

ics, and river currents),

e to substantiate the need for the project relative to future

appropriations and impacts on the Potomac and other us-

ers, and

e todemonstrate that the proposed intake meets legal crite-

ria for a permit (including serving “the best public inter-

est”).’

In addition, since the Authority claims the proposed intake is

primarily intended to avoid sediment, nutrients, and pollutants

? See letter dated June 25, 1997 from J.L. Hearn, Director, Water Man-

agement Administration, Maryland Department of the Environment, to Char-

lie Crowder, Jr., General Manager, Fairfax County Water Authority (Appen-

dix A).

17a

from Broad and Sugarland Runs upstream,’ MDE concluded

the public interest is best advanced by addressing the “contribut-

ing Causes to the water quality problems in the vicinity of the

existing intake,” citing the success of such an effort at the Oc-

coquan Reservoir, the Authority's other raw water source.‘

MDE recommended that the Authority either pursue “a com-

prehensive basin-wide approach to the management and alloca-

tion of the water resources of the Potomac . . . using the Inter-

state Commission of Potomac River Basin for technical assis-

tance” or withdraw its application.*

The Authority responded by supplementing its application.

On December 10, 1997, MDE denied the amended application,

citing public interest, environmental, and water management

concerns. MDE noted that clogging of the existing intake (the

ostensible reason for a new intake) occurred on average less

than two days per year, only for several hours at a time, and did

not affect treated water quality. Noting ongoing efforts to im-

prove water quality in the area, potential interference with the

river's wild and scenic attributes, and the absence of justifica-

tion for an intake of this size and length in light of existing wa-

ter allocation agreements, MDE advised the Authority to await

the results of both the U.S. Geological Survey's Potomac River

National Water Quality Assessment and the Interstate Commis-

sion on the Potomac River Basin’s basin-wide water study be-

fore proceeding.°

Second, the President has directed the Corps to consult with

the National Park Service when, as here, a proposed permit has

* U.S. Army Corps of Engineers Statement of Findings accompanying

Permit #960017, p. 1.

* See Appendix A and n. 2, supra.

* Id.

° Appendix B.

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the potential to affect wild and scenic river values.’ This portion

of the Potomac is listed on the Nationwide Inventory of river

segments that, after preliminary review, appear to qualify for

inclusion in the National Wild and Scenic Rivers System. The

National Park Service maintains that this segment is one of the

largest free-flowing, relatively undeveloped, high order rivers in

the northeast, containing an exceptional diversity of flow gradi-

ents, a significant and diverse juxtaposition of land, water, and

vegetative elements, rare gorges, and cliffs up to 150 feet in

height. The segment is of particular concern to the Service be-

cause the Service’s National Capital Region manages the

Chesapeake & Ohio Canal National Historic Park within and

parallel to the river corridor. The Park, in turn, depends for the

integrity of its structures on adequate water flow past the Au-

thority’s proposed intake. Consultation with the National Park

Service is imperative because the Service has special environ-

mental expertise to evaluate this application and because such

consultation could avoid adverse effects until the river can be

fully assessed for inclusion in the National Wild and Scenic

Rivers System. The record, however, contains no evidence that

the Corps consulted with the National Park Service on this per-

mit.”

” See Memorandum for Heads of Agencies, August 10, 1980. Responsi-

bilities there given to the Heritage Conservation and Recreation Service were

subsequently transferred to the National Park Service.

* On May 29, 1997, ANS sent the Corps a Freedom of Information Act

request seeking “all documents relating to [this] application,” including “the

permit application. any records relating to the building of new structures in

connection therewith by the Fairfax County Water Authority (including exca-

vation and any associated structures), and NEPA documentation such as an

environmental assessment, a list of those notified concerning the pendency of

the application, the record of decision if any, the permit, and any post-permut

communication between corps and the permitee.” ANS analyzed all docu-

ments received in response to this request.

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Finally, EPA has raised significant environmental concerns

which, under the National Environmental Policy Act, “should be

considered during the preconstruction period and not be put off

until renewal of the current [water appropriation] permit,” ac-

cording to EPA.’

2. Summary of ANS’ objections to the permit.

ANS believes that permit #960017 is not authorized by stat-

ute, contrary to regulation, unsupported by the evidence, arbi-

trary and capricious, and unduly vague; violates ANS’ right to

due process; and violates the President's Executive Order on

Environmental Justice. Specifically:

A. Permit #960017 purports to fall within the ambit

of “Abbreviated Standard Permit 92-ASP-18.” However,

the Authority's proposed intake does not meet the terms

of “Abbreviated Standard Permit 92-ASP-18” because:

e ASP-18, by its terms, authorizes work

solely “within the geographical limits of the

Commonwealth of Virginia.” Since the

proposed construction of the new intake,

the 10 foot diameter pipe, and the tee struc-

ture to accommodate a future intake will

take place in Maryland waters, ASP-18

does not authorize this project."

* Letter dated August 29, 1997 from Thomas J. Maslany, Director, Water

Protection Division, Region III, U.S. Environmental Protection Agency, to

J.L. Hearn, Director, Water Management Administration, Maryland Depart-

ment of the Environment. (Appendix C).

'© After permit issuance, the Authority apparently realized the permit did

not cover work outside Virginia and requested clarification. The Corps at-

tempted to “modify” the permit by letter to authorize work in Maryland as

well. (See letter dated May 5, 1997 from Bruce F. Williams, Chief, Northern

Virginia Regulatory Section, Norfolk District, U.S. Army Corps of Engineers

to the Fairfax County Water Authority.) The purported “modification” has no

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e ASP-18, by its terms, authorizes work

solely “under the regulatory jurisdiction of

the Norfolk District” of the Corps. Since

the proposed construction of the new in-

take, the 10 foot diameter pipe, and the tee

structure to accommodate a future intak

will take place outside of the Norfolk Dis-

trict (i.e., in Maryland waters), ASP-18

does not authorize this project.”"'

e ASP-18, by its terms, requires the Corps to

determine that a project is “of minimal en-

vironmental consequence.” The Corps

validity because a permit cannot be modified by letter, instead, the Corps

must follow the process outlined in its regulations. See 33 C.F.R. 325.7(a).

Where, as here, significant increases in permit scope (such as inclusion of

work in another State) are contemplated. Corps regulations require a new

permit application. Id. In addition, there is no ASP-18 permit process any-

where in the nation outside Virginia. A similar permit process cannot be cre-

ated in Maryland by letter. Instead, an ASP-18 for Maryland would require,

among other things, a change to the Corps’ permit regulations, an Environ-

mental Assessment or Environmental Impact Statement addressing impacts

within Maryland and its environs, adequate public notice and comment, and

clear definition of the nature of the activities covered by the permit.

"The Norfolk District handled this application because the project origt-

nated in Virginia. See letter dated May 5, 1997 from Bruce F. Williams,

Chief, Northern Virginia Regulatory Section, Norfolk District, U.S. Army

Corps of Engineers to the Fairfax County Water Authority. Corps regula-

tions, however, require regulatory compliance to be determined by the district

where the discharge or impacts occur, 33 C.F.R. 230.5. This makes sense

because it ensures familiarity with local regulations and environmental con-

cerns and in particular here because the Baltimore District ts responsible for

ensuring an adequate, uninterrupted water supply to the District of Columbia

via the Washington Aqueduct. Had the Corps followed correct process, it

could have avoided many permit errors such as permit conditions which refer

to Virginia, rather than the applicable Maryland, water quality standards and

certification (see Paragraph C, below) and failure to consider the District of

Columbia's water supply interests.

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never made the requisite finding. Instead,

the Statement of Findings accompanying

permit # 960017 merely notes that permit

conditions minimize the impacts of the

original proposal; the Statement made no

finding that residual impacts are of “mini-

mal environmental consequence.”

If the Corps were to conduct the requisite

examination, the permit could not issue be-

cause the proposed’ intake does not meet the

essential qualifying test of ASP-18: i.e., it

is not of “minimal environmental conse-

quence.” To the contrary, the proposed in-

take will have significant environmental

consequences, including:

¢ Navigational hazards. The proposed

intake will involve an intake structure

in a shallow, flat portion of the river as

well as an above-water walkway from

the bank to the intake. EPA has deter-

mined that both structures may present

a hazard to navigation."’

© Scenic attributes. EPA has determined

that the project's above-water struc-

tural components may compromise the

river's wild and scenic attributes."’

© Aquatic resources and habitat. Con-

struction of three proposed structures

~~ the new intake, the 18-foot by 18-

foot trench in the rock bottom of the

? See Appendix C and n. 9, supra.

Id.

22a

river for the mid-river connecting

pipe, and the 15-foot wide trench for

the near shore, 3200-foot long conduit

from the existing intake to the raw wa-

ter pumping station — will generate

sediment and nece . sitate blasting, dis-

turbing aquatic species and habitat.

The silt curtains proposed as mitiga-

tion will have limited effectiveness, as

their manufacturer notes, for three rea-

sons: (i) Silt curtains are designed for

“quiescent environments,” not blasting

situations, (ii) “They are not designed

to control fluid mud,” and (iii) “Most

of [the] fine-grained suspended mate-

rial in the water column escapes with

the flow of water and fluid mud under

the curtains.”"* The record shows no

analysis of the impacts of this material

on bottom-feeding organisms. Finally,

once construction is complete, EPA

still worries that “especially during

low flow periods, . . . these withdraw-

als ... will... have a detrimental ef-

fect on the living resources of the Po-

tomac River.”

¢ Water allocation and quantity. The

Authority's current water consumption

rate (60mgd) is substantially below

'* Fairfax County Water Authority Response to U.S. Army Corps of Engi-

neers Regarding U.S. Fish and Wildlife Service Comments on Joint Applica-

tion for Permit for Potomac Mid-River Intake, December, 1996 (hereafter

“Authority's Response”), Exhibit 10.

'* See Appendix C and n.9, supra.

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both its current water appropriation

permit limits (100 mgd annual aver-

age, 200 mgd daily maximum) and its

own physical intake capacity (400

mgd).'° The proposed intake, designed

to accom 1odate 300 million gallons

per day and to operate alone or in tan-

dem with the existing intake, would

only increase the amount of excess ca-

pacity. However, the Authority pro-

jects that water consumption will in-

crease to 300 mgd within 40 years,"

precisely the excess capacity the Au-

thority proposes to add now. In addi-

tion, the proposed pipeline will in-

clude a mid-river tee structure, ap-

proximately 75 feet from the new in-

take, to accommodate a third, future

intake. With so much excess capacity

and the initial structural components

for a third intake in place, many par-

ties, including EPA, have expressed

concern the Authority will request a

larger allocation if the new intake is

constructed. EPA has questioned

whether both intakes will “affect the

natural flow of the river,” especially

during low flow periods." The

Authority apparently shares this con-

cern since it is making provisions for a

'* Authority's Response, pp. | -2.

"Id. at 4.

'® See Appendix C and n.9, supra.

24a

third intake “to improve hydraulic per-

formance at low Potomac River water

levels when raw water withdrawals are

near maximum.””"”

Secondary and cumulative impacts on

development. The watersheds along

Sugarland and Broad Runs and else-

where in the county are undergoing

such intense development that the Au-

thority expects water consumption to

increase five-fold in 40 years.” Allow-

ing the Authority to construct struc-

tural components for three water in-

takes will fuel this development and

decrease pressure for water conserva-

tion measures. Excess capacity, among

other things, caused EPA to term this a

“significant environmental project [re-

quiring] a thorough analysis of secon-

dary impacts.””!

ASP- 18, by its terms, requires the Corps to

determine that a project is not “contrary to

the public interest.” The Statement of Find-

ings accompanying permit # 960017 makes

this claim but could not possibly be sus-

tained because:

The Maryland Department of the En-

vironment had not yet finished its re-

'? U.S. Army Corps of Engineers Statement of Findings accompanying

Permit # 960017, p.1.

© Authority's Response, pp.2-4.

2" See Appendix C and n.9, supra.

25a

view, so the Corps could not consider

the State’s interests.

The interagency review was so cursory

as to be virtually nonexistent. Indeed,

the record contains no evidence that

several key agencies were even noti-

fied of the application. (See Paragraph

I below.)

The public, not properly notified of

this proposed permit, did not have an

appropriate opportunity for input. (See

Paragraph I below.)

The Corps did not conduct the envi-

ronmental analysis required by the Na-

tional Environmental Policy Act. (See

Paragraph B below.)

The permit violates numerous consti-

tutional, statutory, regulatory, and ex-

ecutive branch requirements, as set

forth more fully below.

The proposed intake is, in fact, “con-

trary to the public interest.” Both EPA

and MDE have found the potential ad-

verse environmental impacts to be

significant and not justified by any

showing of need. Indeed, EPA found:

“The [Authority] notes that

the existing intake is prone to

clogging due to aquatic plant

growth along the shallow banks,

a higher sediment load along the

banks (which may increase the

potential for water borne dis-

26a

ease), and water freezing along

the shallow banks in winter

blocking the intake. A significant

portion of the problem with

aquatic plant growth may stem

from excess nutrients frc.n up-

stream runoff. Similarly, excess

sediment may be the result of

discharges upstream from devel-

opment and runoff. The [Author-

ity] and other agencies should

work cooperatively to prevent

and control upstream erosion at

the source. Building a new intake

cannot be a substitute for proper

management of these problems

at their source upstream.”

B. Permit #960017 violates the National Environ-

mental Policy Act (NEPA) and implementing regulations

because:

e NEPA requires either an Environmental Assess-

ment (EA) or Environmental Impact Statement

(EIS) for activities such as this which do not qual-

ify for a categorical exclusion. See, e.g., 33 C.F.R

230.6, 230.7(a), and 325.2(a)(4). The Corps failed

to require either an EA or EIS before issuing per-

mit #960017. Instead, the Corps appears to have

relied upon a purported “Final Environmental As-

sessment” of ASP-18 itself. This document cannot

substitute for an assessment of the proposed intake

because:

2 Id.

27a

¢ The document does not identify a class of

activities which includes the proposed water

intake. To the contrary, the Corps claims that

the nature of the activities grouped under

ASP-18 “var[ies] so widely” that identifica-

tion is “not practicable.” - ecause the Corps

did not identify proposed water intakes as

subjects for evaluation, the final document

does not take a “hard look” at the impacts of,

and alternatives to, such intakes as NEPA

requires.

¢ The thrust of this document is entirely in-

tra-State. The document considers only en-

vironmental impacts and alternatives within

the Commonwealth of Virginia, whereas

this construction takes place in Maryland

waters and has environmental impacts both

within Maryland and the District of Co-

lumbia.

¢ ASP-18 itself violates NEPA. The Corps’ pur-

ported Final Environmental Assessment of ASP-18

is wholly inadequate because:

¢ It was issued without the public input and

interagency coordination required by

NEPA. Instead, the Corps relied on pur-

ported public review of “General Permit

#18” 15 years ago.” This cannot suffice for

compliance with NEPA because:

¢ ASP-18 differs from GP-18 in key re-

spects: it has no expiration date, in-

2” See Final Environmental Assessment for Norfolk District Abbreviated

Standard Permit, ASP-18, p. 3.

28a

volves a different interagency review

process, and different permit condi-

tions, as the Corps acknowledges.”

These differences were sufficient to

compel the Corps to prepare a “Final

En. ironmental Assessment” before is-

suing ASP-I8.

In the intervening 15 years, the com-

position of the public, the nature and

understanding of the environmental

impacts, and the applicable regulatory

requirements have changed.

In any event, ASP-18 was designed by

the Corps to apply to “many” projects

which do not meet requirements for

nationwide or regional permits.”

These disparate projects are not “simi-

lar in nature” and therefore not eligible

for general permits. See 33 U.S.C.

1344(e) and 33 C.F.R. 322.2(f).

This purported assessment does not exam-

ine the impacts of, and alternatives to, any

defined group of activities. Instead, the

Corps admits that the nature of the activi-

ties grouped under ASP-18 “var[ies} so

widely” that identification is “not practica-

ble.””* :

4 See Public Notice of April 29, 1997 announcing ASP-18.

25 See Final Environmental Assessment for Norfolk District Abbreviated

Standard Permit, ASP-18, p.1.

* 1d., p. 3.

29a

¢ This purported assessment does not identify

and compare “all reasonable alternatives”

as required by NEPA. To the contrary, it

considers using only Corps-issued individ-

ual permits or State-issued regional per-

mits.”’ It never considers the obvious alter-

native of categorizing some of these varied

activities and deciding upon the suitability

of abbreviated permitting in light of cate-

gory-wide cumulative impacts.

¢ This purported assessment uses an inappro-

priate test for determining environmental

significance, excluding “issues of only lo-

cal or regional significance.” NEPA does

not limit EIS requirements only to nation-

ally significant impacts, but may require an

EIS even for activities of purely regional or

local significance.

¢ CEQ and Corps regulations require that agencies

“rigorously explore and objectively evaluate ail

reasonable alternatives” to a proposal, including

alternatives “not within the jurisdiction of the lead

agency.” 40 C.F.R. 1502.14(a), (c), and (d) and 33

C.F.R. 230. 1. The Evaluation of Alternatives” af-

fixed to this permit application in lieu of an EA or

EIS does not meet this standard because:

e The “evaluation” purports to address ero-

sion control but, in so doing, analyzes only

“local government enactment and enforce -

” Id.

* Id. pl.

* See Attachment 7 to the permit application.

30a

ment of erosion control ordinances,” rather

than federal and State action such as:

e using the Clean Water Act's water

quality standards and nonpoint source

provisions to control pollution from

Sugarland and Broad Runs.

e using the Coastal Zone Act Reauthori-

zation Amendments of 1990 provi-

SiONs ON NONpoint source management

measures in the vicinity of Sugarland

and Broad Runs.

e using the Interstate Commission on

the Potomac River Basin’s authority to

control the pollution from Sugarland

and Broad Runs. The Commission has

broad-reaching statutory authority to

“promot[e] uniform laws, rules, or

regulations for the abatement and con-

trol of pollution of streams and the

utilization, conservation and develop-

ment of the water and associated land

resources” in the basin, to “make . . .

reasonable minimum standards” for

waste treatment and stream cleanli-

ness, and to “establish reasonable

physical, chemical and bacteriological

standards of water quality.”

e adopting a comprehensive basin-wide

approach to the management and allo-

cation of the water resources of the

Potomac, as suggested by MDE.

e The Authority did not analyze other obvious

alternatives such as: -

3la

¢ reducing nutrient loads from poultry

farmers in the upper watershed,

¢ enhanced maintenance of the existing

water intake (because, the Authority

claims, this alternative would not re-

duce the Authority's solids handling

costs),

© water conservation measures to reduce

projected water consumption rates and

minimize dependence on the Potomac

River.

¢ The Evaluation of Alternatives is not credi-

ble. The Authority claims erosion control

measures will achieve only “limited success”

(i.¢., a 10-20% reduction in solids), but pro-

vides no basis for this conclusory appraisal.

¢ The Corps did not comply with its own practice

which has subjected intakes of considerably less

~ volume to detailed NEPA analyses.

C. Permit #960017 violates the Clean Water Act and im-

plementing regulations because:

¢ It was issued without the requisite 401 certificate (or

waiver).

¢ It only requires compliance with a water quality certifi-

cation from “the Commonwealth of Virginia,” whereas

the appropriate certifying agency for the intake, con-

necting pipe, and tee structure is the State of Maryland.

(See ASP-18, Special Condition # 6.)

e It only requires compliance with the water quality stan-

dards and regulations of the “Commonwealth of Vir-

ginia,” whereas the appropriate standard-setting and

regulatory body for the intake, connecting pipe, and tee

32a

structure is the State of Maryland. (See ASP-18, Gen-

eral Condition # 11.)

e = It was issued without requisite notice to the District of

Columbia, contrary to sections 401, 402, 404, and

502(3) of the Clean Water Act.“

D. Permit #960017 violates the Rivers and Harbors Act.

e The Corps has determined that Section 10 of the Rivers

and Harbors Act of 1899 and the public interest require

a Low Flow Allocation Agreement as a precondition for

permitting water intake structures on this portion of the

Potomac to ensure that water quantity is adequate to

meet demands during low flow periods."

e The Low Flow Allocation Agreement relied upon here is

wholly inadequate to fulfill this statutory precondition

because:

e It is outdated, having been signed in 1978 and not

updated since.

e It does not account for the Interstate Commission

on the Potomac River Basin’s more recent projec-

tions that water consumption will produce a 21-

100 mgd deficit in needed Potomac River system

flow by the year 2020.”

* See. e.g.. the Statement of Findings accompanying permit #960017, In-

teragency Coordination Form Distribution List, and Public Notice mailing

list.

" See text of Low Flow Allocation Agreement.

‘° 1995 Water Demand Forecast and Resource Availability Analysis for

the Washington Metropolitan Area, April, 1996, prepared by the Section for

Cooperative Water Supply Operations on the Potomac of the Interstate

Commission on the Potomac River Basin to implement the study required by

the Low Flow Allocation Agreement.

E.

F.

33a

e It does not restrict allocations until withdrawals

equal 80% of the total daily flow of the river,

¢ It does not treat anything short of a completely dry

river (i.¢., 0% flow) as an “emergency,”

¢ It bases allocations on prior consumption, penaliz-

ing those who engage in effective water conserva-

tion.

Permit #960017 violates the Coastal Zone Act Reau-

thorization Amendments of 1990 and implementing

regulations because:

It was issued without the requisite certification that the

proposed intake complies, and will be consistent with,

the Coastal Zone Management Act as amended. The

1990 amendments to this Act extend the geographic

reach and strengthen the nonpoint source protections of

the prior law; the record contains no indication that the

Corps considered the applicability of these amendments

here.

Permit #960017 is not sufficient to comply with the

Corps’ responsibilities regarding the National Historic

Preservation Act.

The permit application indicates that the Authority

never contacted the Virginia Department of Historic

Resources and does not know whether there is a report

on file with that agency concerning this property.

The archeological survey the Authority supplied has not

been updated in almost 20 years.

The conduit connecting the proposed with the existing

intake would appear to require construction and blast-

ing in an area identified as “44LD3” in the Authority’ s

1979 archaeological report. The report describes this

area as a “major site that extended to a depth of at least

34a

80cm below the existing ground surface, . . . [was] con-

tinuous throughout the length of the [existing] intake

easement, . . . continued laterally beyond the Fairfax

County Water Authority easement,” and required miti-

gation. The report further recommended an “excavation

program,” “final analysis,” and “full literature search on

Potomac River archeology.” The permit application

does not contain the results of any of these efforts.

e In short, although the permit requires notice to the

Corps before the Authority knowingly impacts historic

properties, neither the permit nor the permit process re-

quired the applicant or the Corps to examine the possi-

bility of such impacts.

G. Permit # 960017 is unsupported by the evidence and ar-

bitrary and capricious for the foregoing reasons and be-

cause none of the critical allegations in the permit appli-

cation are supported by adequate documentation in the

record, including:

e the existence of a clogging problem with the current in-

take,

e the limited utility of erosion control and other water

quality management measures in reducing sediment,

nutrients, and other pollutants in the vicinity of the cur-

rent intake,

e the need for a new intake,

e the need for an intake designed of this size and distance

from the shoreline,

e the ability of a new intake to improve water quality,

e the purported savings in solids handling costs from the

new intake, and

e the effectiveness of the proposed mitigation.

35a

H. Permit #960017 is unduly vague because:

¢ The letter accompanying permit #960017 warns the Au-

thority that a change in “any aspect of your proposal”

requires permit modification.” The letter does not iden-

tify the Corps’ position on whether increased with-

drawals constitute a change requiring permit modifica-

tion.

¢ The permit does not contain a condition preventing in-

creased water withdrawals without an application for

permit modification. Initially, the Corps insisted on

such a provision.“ When the Authority objected—

ostensibly because Maryland Department of the Envi-

ronment must first authorize withdrawals, the Corps

withdrew the provision.** MDE’s water appropriation

* See letters dated January 31, 1997 and May 27,1997 from Bruce Wil-

liams, Chief, Northern Virginia Regulatory Section, Norfolk District, U.S.

Army Corps of Engineers, to Fairfax County Water Authority.

* The Corps informed the Authority: “The permit conditions should state

that the conditions of the Maryland Department of the Environment regarding

the maximum amount of water that can be withdrawn from the Potomac

River are a condition of this Department of the Army permit. If, at any time,

Fairfax County Water Authority proposes to modify this permit for an addi-

tional amount of water to be withdrawn, such a proposal shall be submitied as

a permit modification. The modification will be forwarded to the U.S. Fish

and Wildlife Service, the National Marine Fisheries Service, and the Envi-

ronmental Protection Agency for review. The Corps will fully consider all

comments received before making a decision on whether or not to modify the

permit.” (See letter dated June 10, 1996 from Bruce F. Williams, Chief,

Northern Virginia Regulatory Section, Norfolk District, U.S. Army Corps of

Engineers to Fairfax County Water Authority.)

® The Authority also argued that the Potomac River Low Flow Allocation

Agreement adequately regulated withdrawals by requiring the Authority to

reduce water consumption during a “ restrictions stage.” However, these re-

strictions only apply when total daily withdrawal equals or exceeds 80% of

the river's total daily flow. These emergency provisions do not protect long-

term water flow and aquatic resources and are no substitute for adherence to

36a

statute, however, focuses on “waters of the State.” It is

not clear that MDE will interpret the statute to protect

the interests of the District of Columbia. In any event,

MDE'’s review does not satisfy the Corps’ statutory re-

sponsibilities to ensure an adequate, uninterrupted flow

of water to the District of Columbia and a wise use of

the Potomac resource.

I. Permit #960017 violates due process because:

e Permit #960017 was issued without statutory authoriza-

tion; in contravention of NEPA, the Clean Water Act,

the Rivers and Harbors Act, the Coastal Zone Act Re-

authorization Amendments of 1990, and the National

Historic Preservation Act; and without complying with

the Corp’s own permit regulations. 33 C.F.R. 325.2.

e The “Public Notice” accompanying permit #960017

was inaccurate and misleading. Specifically:

e The notice did not apprise reviewing agencies or

the public of the possibility that the proposed in-

take could be used for increased water withdraw-

als. The notice merely stated: “The purpose of the

project is to provide . . . an alternative intake struc-

ture.” The notice failed to mention that the alterna-

tive structure was designed to be used in tandem

with the existing intake, increasing the capacity for

water withdrawals.

e The notice states: “Comments are used in the

preparation of an Environmental Assessment

and/or an Environmental impact Statement pursu-

ant to the National Environmental Policy Act.” In

‘the Corps’ statutory responsibilities for adequate planning, management, and

environmental analysis in advance of emergencies. ( See also Paragraph D

above.)

37a

fact, the Corps planned to bypass both an EA and

EIS by using the ASP-18 process. The notice did

not alert reviewing agencies or the public to the

absence of any NEPA-type deliberative process.

e The notice states: “The Corps of Engineers is solic-

iting comments from the public; Federal, state, and

local agencies and officials; Indian Tribes; and

other interested parties in order to consider and

ev»tuate the impacts of this proposed activity.” In

fact, the Corps distributed the notice to only four

State agencies, all located in Virginia.” The record

' contains no evidence the notice was sent to other

affected agencies, including:

e the District of Columbia, which uses the Po-

tomac as its sole water source,

e the National Capital Planning Commission,

e Montgomery County

e Prince George’s County

e the Interstate Commission on the Potomac

River Basin.

e Permit #960017 was issued without adequate pub-

lic notice. No notice appeared in the Federal Regis-

ter, and the record shows no evidence of notice in a

newspaper of general circulation in the affected

area. Instead, the Corps apparently mailed notice

only to a limited list of parties who had previously

registered to receive information about the activi-

ties of the Norfolk District of the Corps. This prac-

tice was insufficient to notify resiGents of Mary-

* Three federal agencies—EPA, the Fish and Wildlife Service, and the

National Marine Fisheries Service—also received copies.

38a

land and the District of Columbia, who would not

normally follow the activities of the Norfolk Dis-

trict, about the pending application.

e Permit #960017 was issued without appropriate in-

teragency review.

e As noted earlier, the public notice was in-

accurate and misleading and the record

contains no evidence that the National Park

Service was even consulted, contrary to 40

C.F.R. 1501.5 and 1501.6.

e The “fast track” (i.e. 16 day) interagency

review process compounded these errors,

preventing federal agencies from focusing

effectively on the possibility and magnitude

of increased water withdrawals.

e Since the permit issued, at least one federal

agency (EPA) has expressed concern over

the detrimental effects increased withdraw -

als could have on both the natural flow of

the river and the river’s living resources.

e Permit #960017 is unduly vague. (See Paragraph H

above.)

J. Permit #960017 violates the President’s Executive

Order on Environmental Justice (Executive Order

#1 2898, issued February 11, 1994).

e The Executive Order directs federal agencies to ensure

that their actions: a) do not discriminate on the basis of

race, color, or national origin, b) address “dispropor-

tionately high and adverse human health or environ-

mental effects” on minority and low income popula-

tions, and c) provide additional outreach, notification,

and opportunities for input in the NEPA process to mi-

nority and low income communities.

39a

Both CEQ and EPA have issued draft guidance for

complying with the Executive Order. Both guidance

documents direct federal agencies to apply the Execu-

tive Order’s analytical and outreach provisions when-

ever the percent of minority or low income people in

the area potentially affected by a proposed project

equals or exceeds 50% of the population.

The District of Columbia is directly affected by the

proposed project since the District draws its water sup-

ply solely from the Potomac River immediately down-

stream of the proposed water intake and the District,

along with Maryland and Virginia, is a signatory to the

Potomac River Basin Compact and the Potomac River

Low Flow Allocation Agreement.

The District of Columbia meets the definition of a mi-

nority or low income population for purposes of Execu-

tive Order #12898 because the District has a popula-

tion that is roughly 67% African-American and has

large numbers of Hispanic and Asian residents.

Contrary to the Executive Order, the Corps in issuing

permit #960017 did not address the potential impacts of

the proposed project on the downstream District of Co-

lumbia. The Statement of Findings accompanying per-

mit #960017 makes no mention of:

e Executive Order #12898,

e the principles of environmental justice,

© potential impacts on the District of Columbia, or

e the District of Columbia’ s interest in the proposed

project.

Contrary to the Executive Order, the Corps in issuing

permit #960017 apparently made no attempt to notify

and obtain comment from the District of Columbia

40a

government or environmental justice community repre-

sentatives within that jurisdiction.”

3. ANS’ recommendations to the Corps.

Because MDE'’s refusal to issue a permit bars construction of

the proposed intake, ANS has not otherwise challenged permit

_ #960017. ANS, however, reserves the right to do so should the

Authority persuade MDE to issue a waterway construction per-

mit, allowing the proposed intake to proceed. In the meantime,

ANS respectfully requests that the Corps reconsider this permit.

ASP-18 explicitly notifies a permittee that the Corps may re-

evaluate a permit whenever the supporting information or data

prove to be “false, incomplete, or inaccurate” or when “signifi-

cant new information surfaces which [the Corps] did not con-

sider in reaching the original decision.” (See ASP-18, General

Conditions # 20 and 23).

At the time the Corps issued permit # 960017, it lacked the

benefit of the significant issues of inadequate technical design

and construction, unsubstantiated project need, interference with

wild and scenic river attributes, absence of public interest, and

availability of alternative pollution control solutions raised by

Maryland Department of the Environment in its June 25, 1997

and December 10, 1997 letters. (Appendices A and B). The

Corps also lacked the benefit of the significant issues of poten-

tial navigational hazards; interference with wild and scenic river

attributes; disturbance of aquatic resources and habitat; interfer-

ence with water allocation, quantity, and river flow; and inade-

quate analysis of secondary and cumulative impacts on devel-

opment raised by EPA in its August 29, 1 997 letter. (Appendix

C). Finally, due to inadequate public notice and comment, the

Corps lacked the benefit of the legal and factual analysis out-

” See Statement of Findings accompanying permit #960017, Interagency

Coordination Form Distribution List, and Public Notice mailing list.

'

i es ae

4la

lined above. Any one of these letters gives the Corps ample rea-

son to reevaluate this permit.

Reconsideration of this permit is essential to serve the public

interest. Reconsideration will:

© prevent irreversible environmental damage,

© protect the wild and scenic attributes of this magnifi-

cent river,

¢ promote sound, comprehensive, and basin-wide man-

agement and allocation of the Potomac’s precious water

resources,

© preserve the region’s economic future by preserving the

water supply which is key to development and growth,

e foster pollution prevention,

¢ avoid navigational hazards,

e advance environmental justice,

¢ allow appropriate public participation in the Corps’ de-

cision-making,

© support the State of Maryland’s statutorily protected

rught (under Section 401 of the Federal Clean Water

Act) to make water quality decisions free of the pres-

sure of a prior federal imprimatur, and

e fulfill the Corps’ statutory responsibilities.

Reconsideration of this permit will not prejudice the appli-

cant. ASP-18 expressly notifies the permittee of the “need to

obtain other Federal, state or local authorizations required by

law.” (See ASP-1 8, General Conditions #21.) In addition, the

Corps notified the Authority that “this permit is not valid until

42a

you have obtained a 401 certificate or waiver.””* The Authority’s

failure to obtain either a nontidal wetlands and waterway con-

struction permit or a 401 certification from the State of Mary-

land bars construction, leaving the permit without operative ef-

fect so long as the State of Maryland takes no further action.

We request that you meet with us as promptly as possible to

discuss how you intend to proceed to reevaluate this permit. The

Potomac River is the nation’s showpiece. We look forward to

working with you to protect its future.

Sincerely,

/s/_ Frances A. Dubrowski,

FRANCES A. DUBROWSKI,

Attorney for the Audubon

Naturalist Society

cc: Martin B. Sultan, Director, Engineering and Construction

Division, Fairfax County Water Authority

Joseph Ballard, Chief of Engineers, U.S. Army Corps of

Engineers

Donald Barry, Assistant Secretary for Parks, Conservation,

and Wildlife, Department of Interior

Dinah Bear, General Counsel, CEQ

Colonel Bruce A. Berwick, District Engineer, Baltimore

District |

Jonathan Z. Cannon, General Counsel, EPA

Terry Carlstrom, Director, National Capital Region, Na-

tional Park Service

Doreen Cook, Attorney Advisor, DC Environmental Regu-

lation Administration

*8 Letter dated May 27, 1997 from Bruce F. Williams, Chief. Northern

Virginia Regulatory Section, Norfolk District, U.S. Army Corps of Engi-

neers, to Fairfax County Water Authority.

43a

Honorable J. Joseph Curran, Jr., Attorney General, Mary-

land

Lester Edelman, Chief Counsel, U.S. Army Corps of Engi-

neers

John M. Ferren, Corporation Counsel, District of Colum-

bia

John R. Griffin, Secretary, Maryland Department of Natu-

ral Resources

J.L. Hearn, Director, Maryland Water Management Ad-

ministration

Steven Herman, Assistant Administrator for Enforcement

and Compliance Assurance, EPA

John Leshy, Solicitor, Department of Interior

Thomas Maslany, Director, Region Il Water Protection

Division

Michael McCabe, Regional Administrator, Region II

EPA

Honorable Kathleen A. McGinty, Chair, Council on Envi-

ronmental Quality |

Jane Nishida, Secretary, Maryland Department of the Envi-

ronment

Robert Perciasepe, Assistant Administrator for Water,

EPA

Colonel Robert H. Reardon, Jr., District Engineer, Norfolk

District

Robert Stanton, Director, National Park Service

Angelo Tompross, Administrator, District of Columbia

Environmental Regulation Administration

Bruce Williams, Chief, Northern Virginia Regulatory Sec-

tion, Norfolk District, U.S. Army Corps of Engineers

44a

APPENDIX H

DEPARTMENT OF THE ARMY

OFFICE OF THE ASSISTANT SECRETARY

CIVIL WORKS

108 ARMY PENTAGON

WASHINGTON DC 20010-0108

O05 Mar.1995

Mr. Frances A. Dubrowski

11 Dupont Circle, N. W.

Suite 800

Washington, D. C. 20036

Dear Mr. Dubrowski:

This is in response to your letter of December 22, 1997, re-

garding your concerns about the Army Corps of Engineers Nor-

folk District issuance of a permit to the Fairfax County Water

Authority to construct a new water supply intake and related

structures in the Potomac River. You urged the Corps to recon-

sider and revoke this permit.

The District confirms that they issued this permit after provid-

ing an opportunity for public comment. Although no comments

from the public were received, the District included several spe-

cial conditions in the permit, to minimize the effects of the con-

struction and the operation of the intake on aquatic resources.

A condition of the District’s permit required the county to

obtain all necessary State permits before commencing construc-

tion. As indicated in the copy of the December 10, 1997, corre-

spondence from the Maryland Department of the Environment,

the State denied the Fairfax County Water Authority's applica-

tion for a nontidal wetlands and waterways permit. Because of

this denial, the District has suspended the Department of the

Army permit.

45a

If the county resolves the State’s concerns and obtains the re-

quired State permits, the District Engineer will fully consider

the concerns expressed in your letter before making any decision

to reinstate, modify; or revoke the Department of the Army

permit.

In light of these circumstances, I do not believe that interven-

tion in the District’s action is warranted. However, if you have

additional questions about Corps Regulatory Program, please

contact Mr. John F. Studt, Chief, Regulatory Branch, at (202)

761-0199.

Sincerely,

/s/ John Zirschky

JOHN H. ZIRSCHKY

Acting Assistant Secretary of

the Army

(Civil Works)

46a

APPENDIX I

MARYLAND:

OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF

FAIRFAX COUNTY WATER AUTH/

POTOMAC RIVER INTAKE

BEFORE THE HON. NEILE FRIEDMAN

AN ADMINISTRATIVE LAW JUDGE OF THE OFFICE OF

ADMINISTRATIVE HEARINGS CASE NO. 98-MDE-WMA-

116-044

PRE-HEARING BRIEF OF

FAIRFAX COUNTY WATER AUTHORITY

The Fairfax County Water Authority (the “Authority”) sub-

mits this pre-hearing brief, pursuant to Judge Friedman’s letter

ruling of September 4, 1998. Following a series of meetings, the

parties have narrowed the substantive legal issues involved in

this contested case hearing to the following: the effect of the

Compact of 1785 and its progeny (the “Compact”) on the Au-

thority’ s right to build the intake; the applicable legal standard

under section 5-507 of the Environmental Article concerning the

issuance or denial of the waterway construction permit, and

whether MDE has waived its authority to refuse to issue a sec-

tion 401 certificate under the Clean Water Act. This memoran-

dum sets forth the Authority’s position on these purely legal is-

sues. It also argues that the Administrative Law Judge should

rule that the adequacy of the future water supply for the Wash-

ington Metropolitan Area is not relevant to whether the re-

quested permits should be issued.

THE STIPULATIONS OF THE PARTIES

In a written Stipulation of the Parties, filed on October 9,

1998, MDE and the Authority resolved a number of previously

disputed issues. The first four of these stipulations affect the

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scope of the legal issues to be resolved by this tribunal. A copy

of those Stipulations is attached as Exhibit I.

* * * *

This political pressure is no doubt responsible for MDE’s re-

fusal to concede that the adequacy of the future water supply for

the Washington Metropolitan Area is not a proper issue for con-

sideration in this contested case hearing. As noted above, a

number of Maryland politicians had attacked the Authority’s

intake application during the comment period as some sort of

covert or untoward attempt by Virginia to “grab” more than its

fair share of water, suggesting that approval of the permit for the

intake might result in a water shortage for Marylanders some-

time in the future. The Authority believes, for the reason set out

more fully below, that this attack is without basis in fact or law,

and that the Administrative Law Judge should rule in advance of

the hearing that this issue is not relevant to the permit decision

in question.

ARGUMENT

A. THE ADEQUACY OF THE FUTURE WATER SUP-

PLY FOR THE WASHINGTON METROPOLITAN

AREA IS NOT RELEVANT IN THIS PROCEEDING.

Most of the critics of the Authority’s proposal for an offshore

intake complained that it would allow Virginia to take more

than its “fair share” of water from the Potomac River, to the det-

riment of residents of Maryland. This criticism reflected a com-

plete lack of understanding not only about the existing water

supply and coordination agreements in place to ensure an ade-

quate water supply, but also about the mechanics of adding a

second intake structure to the Authority's existing mixing

chamber and conduit.

Moroever, in April 1996, MDE approved the Authority’s re-

vised water appropriation permit, explicitly recognizing that wa-

ter could be taken both from the shore and from the proposed

offshore intake. Ex. 4. This proceeding, by contrast, involves a

waterway construction permit and § 401 certification. Because

48a

the Authority does not seek an increase in its water appropria-

tion authorization In this proceeding, the Quantity of water to be

taken from the Potomac in the future is simply irrelevant.

* * * *

However, the offshore intake essentially adds a “Y” to the

existing intake, mixing chamber and conduit on the shore. Ac-

cordingly, the mixing chamber and conduit establish a “bottle-

neck” and physically limit increases in the maximum intake ca-

pacity beyond that of the existing intake.

Third, as demonstrated above, there is no factual basis for the

allegation that the Authority, by constructing an offshore intake,

would be in a position to take more than its fair share of water

from the Potomac. Water allocation in times of shortage is gov-

erned by the terms of the 1978 Low Flow Allocation Agree-

ment, regardless of the maximum intake capacity any of the wa-

ter suppliers might otherwise have. Moreover, as stated by the

ICPRB, the needs of water consumers in the Washington Met-

ropolitan Area are secure through the year 2020, and the 1982

co-OP Agreement provides the mechanism for meeting their

needs thereafter based on cost-sharing agreements already in

place between the WSSC, the Authority and the District of Co-

lumbia.°

> MDE appears to concede (and indeed claims vigorously) that it has the

right to regulate the amount of water withdrawn from the River by any party

though the water appropriation permitting process. What MDE purports to

fear is a “camel's nose under the tent” or a foot-in-door” argument by the

Authority, some time in the future, that the Authority has the right to take-

more water because it has two intakes. As shown above, however, the factual

predicate tbr any such fear—that the offshore intake somehow increases the

Authority's intake capacity—is plainly wrong. Nonetheless, in an effort to

alleviate this misplaced concern, the Authority even stated in it’s August

29,1997 Supplemental Submission to MDE that it would agree to accept as a

permit condition a provision stating that the issuance of the waterway con-

struction permit does not increase the Authority's water appropriation level

and “give rise to no inference that the withdrawals permitted by such permit

will be increased.”